At What Stage Is Sanction Required Within The Contours Of Section 188, Criminal Procedure Code, 1973?

Supreme Court recently in Gauri Mohan Bedekar Vs. Sujata Sanjay Bedekar(Criminal Appeal No.394/2020, decided on March 6^th 2020) reiterated the law held in Thota Venkateswarlu v. State of A.P. and Another [(2011 (9) SCC 527] that the Central Government may accord sanction under the proviso to Section 188 of the Code of Criminal Procedure, 1973, even after cognizance of the offence is taken.

The non-obstinate clause states that "Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government."

The said Section unequivocally states that no such offence shall be inquired into or tried unless sanction is in place and by way of such expression it leaves room for little or no doubt that the offence can at least be "investigated" by the authorities without prior need for sanction. Although the Section uses the word "tried" and not trial, the two can be used interchangeably in the present scenario as both are indicative of a stage which ensues after inquiry. The judgment of the  Supreme Court in the State of Bihar v. Ram Naresh Pandey & Anr., AIR 1957 SC 389 categorically held that:

"The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration." (Emphasis added).

In view of the afore-stated, it becomes pertinent to understand the distinction between inquiry, trial and investigation. Section 2(g) of Criminal Procedure Code, 1973 defines"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. Section 2(h) of Criminal Procedure Code, 1973 defines investigation as "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

In the case of Hardeep Singh v. State of Punjab and Ors. (2014) 3 SCC 92 which has been cited and placed reliance upon in the case of Vinubhai Haribhai Malviya Vs State of Gujarat(2019 SCC OnLine SC 1346), the Supreme Court held that "Section 2(g) Cr.P.C. and the case laws referred to above, therefore, clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under Cr.P.C. by the Magistrate or the court. The word 'inquiry' is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial."

Though the present Code does not define the word "trial", its definition can be traced back to the Criminal Procedure Code of 1872 (Act X of 1872) which included a definition of the word trial which was as follows-

"Trial" means the proceedings taken in Court after a charge has been drawn up, and includes the punishment of the offender:

It includes the proceedings under chapters XVI and XVIII, from the time when the accused appears in Court."

It was by way of amendment of 1898 that the word "trial" was dropped from the Code and even the word "inquiry" was modified which has been retained till date in the Code. The earlier definition of inquiry as per Section 4 of the Act of 1872 was-

"Inquiry" includes any inquiry which may be conducted by a Magistrate or Court under this Act."

Even after the removal of the earlier definition of the word trial, the courts have time and again held it to be the proceedings culminating after the framing of charges. The issue regarding the interpretation of the stage at which a trial is said to begin has been dealt by the Supreme Court at length in the case of Common Cause v. Union of India (1996) 6 SCC 775 in which the court held that:

(i) In cases of trials before the Sessions Court the trials shall be treated to have commenced when charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the cases concerned.

(ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973 while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the accused concerned under Section 246 of the Code of Criminal Procedure, 1973.

(iii) In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under Section 251 whether they plead guilty or have any defense to make." (emphasis supplied).

Now the question that arises is whether the process of Magistrate taking cognizance of offence can be said to be a part of inquiry or not. The recent case of Vinubhai while distinguishing between inquiry and trial held that "The word "inquiry" is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial." A clear distinction between "inquiry" and "trial" was thereafter set out in paragraph 54 as follows:

"54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried."

The above judgment clearly states that inquiry starts after the charge-sheet has been filed. Further it is a settled law that the Magistrate has to apply its mind while taking cognizance and the Magistrate has to see if the offence is made out or any other person needs to be charge-sheeted or further investigation needs to be carried out. All of this is in the nature of inquiry and cannot be said to be a mere mechanical task which needs no application of mind. The situation is different when it is a Session triable case as committal inquiry or proceeding is neither an inquiry nor a trial as held by the Supreme Court in Hardeep Singh case.

Now in the light of above stated position of law can it be said that the Supreme Court in Gauri Mohan Bendekar was correct in upholding that sanction can be obtained after taking of cognizance as held earlier in the case of Ajay Aggarwal(1993 AIR 1637) and Thota Venkateshwarlu. While all the three judgments dealt with Section 188 of Criminal Procedure Code, 1973, none of them have examined in depth the interpretation required as to the words "inquiry" and "tried". The judgment of Thota Venketshwarlu simply reiterates Ajay Aggarwal judgment and goes on upholding that "As mentioned hereinbefore, in Ajay Aggarwal's case, it was held that sanction under Section 188 Cr.P.C. is not a condition precedent for taking cognizance of an offence and, if need be, it could be obtained before the trial begins." It further proceeds to state that:

"the proviso to Section 188, which has been extracted hereinbefore, is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence."

The Supreme Court in this judgment without giving any reasons assumed the terms "inquiry" and "tried" to be indicative of the powers of the police authority to inquire and try any offence and doesn't distinguish it with the power of inquiry and trial bestowed upon the Courts. The Section distinctly uses the word "inquire" and not "investigation" which is the power of Magistrate to inquire and same interpretation has been given to the word in other parts of the Section also, wherever the term "inquiry" comes. The terms "inquiry" and "investigation" have apparently been defined in the Code and there is no conflicting view on it. The Legislature has consciously used the term investigation in certain provisions and the term inquiry in other provisions of the Code as to separate the powers between the executive and the judiciary as we follow the adversarial system in India unlike the inquisitorial system followed in France. For example, Section 159 of the Code empowers a Magistrate on receipt of a police report under Section 157, Cr.P.C. to hold a preliminary inquiry in order to ascertain whether an offence has been committed and, if so, whether any persons should be put upon their trial.

The decision of Supreme Court in Thota Venketshwarlu and Ajay Aggarwal therefore cannot be treated as precedents since they were decided without any consideration on above stated important principles of law. In the absence of any mention of arguments/discussion in the above mentioned two judgments related to the distinction between the two terms or analysis of the terms as per section 188 of CrPC it can be safely said that the same were not a part of consideration before the Supreme Court. In State of U.P. v. Synthetics & Chemicals Ltd., (1991) 4 SCC 139, the Court held that "any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as precedent. A conclusion without reference to relevant provision of law is weaker than even casual observation".

Therefore, the position of law as to when a sanction can be taken under Section 188 of CrPC be it before cognizance or post-cognizance still remains open for determination.